However, before beginning, it is worth to make clear a couple of points which are mistakenly flagged by the press: Durov’s arrest is not about freedom of speech and it is not about European law. And now let’s begin.

• Law enforcement against non-European OTT

The first certain point is that, as a consequence of Durov’s arrest, something could change in the relations between online platforms and European national authorities, both judicial and police. At the moment, only the traditional services of European telephone companies are clearly subject to the requests of national authorities, while when it comes to global platforms established outside the EU we enter a sort of limbo.

In truth, Internet giants (Google, Meta, etc.) cooperate with European police authorities, especially when it comes to particularly brutal crimes (e.g. child pornography). But this cooperation, even effective, takes place on the basis of voluntary agreements, rather than in the frame of a binding legal system, as instead foreseen for European telephone companies. The latter have often denounced this form of regulatory asymmetry which, however, rather than damaging the telephone companies themselves, has prevented the birth of a European OTT and messaging service comparable to that of GAFAM (acronym for Google, Apple, Facebook, Amazon and Microsoft).

In the past there was Skype, one of the few European innovative initiatives in this field, which in effect rejected access to its users’ communications, arguing that since it was a peer-to-peer system the operator was not able to read the content exchanged. At the time Skype claimed to be a mere software supplier. But then the company was acquired by Microsoft and its network architecture gradually became centralized, thus granting control to the operator and with that  the possibility of cooperating with national authorities.

Now, the Durov case will serve as an incentive for other European governments, after the French one, to ask global platforms for more structured and less à la carte cooperation. This is why many Big Tech tycoons have risen up and defended Durov, invoking the right to freedom of speech. However, as mentioned about, this case is not about freedom of speech. The charges mentioned by the French judiciary are others and this lead to think that the real problem in this case is the structure of relations with national authorities who want to access the communications of messaging users for investigative reasons.

• How much is European law relevant in this case?

Not too much for the time being. Amongst the list of charges formulated by the French judicial authority against Durov, we find various elements that pertain to criminality and national security, which are typically domains of Member State. Therefore, as long as this case continue to concern the personal responsibility of Mr. Durov, the relevance of European law, and especially of the Digital Service Act, is not considered.

However, things may change, starting from the role of Telegram as a platform. The European Commission is certainly verifying whether Telegram falls under the scope of the Digital Service Act as a VLOP (i.e. very large online platform). To be so, Telegram would have to have 45 million active users in the EU, which it has denied for the moment, despite boasting (it seems) 900 million users worldwide. The European Commission has presumably been examining the methodology used by Telegram to count its active users in the EU for some time and the Durov case has only accelerated the verification process.

There will also be a discussion about whether it is a social or a messaging service, or something encompassing both. If Telegram were to be deemed subject to the Digital Service Act as a VLOP, it would have to implement a stable organizational system to prevent a series of illicit activities that could potentially take place on its channels. These are, for the most part, precisely the illicit activities contested by the French judicial authorities. Telegram would be quite constrained from a regulatory point of view but, on the other hand, it could receive some advantage with respect to national judicial initiatives, which are subject to the primacy of Community law that also recognizes rights and exemptions to platforms under certain conditions.

• The encryption issue

Will the attitude of the EU and national states change towards the encryption of user communications? For years, national authorities have complained that they cannot access communications between users because, in certain circumstances, encryption makes it technically impossible. The ability to protect the confidentiality of communications is one of the aspects that online platforms most advertise to users in order to be preferred and used. But the value of encryption, both end-to-end and at server level, is ultimately an act of faith by users towards the operator. When asked “What is the most secure messaging service?” a well-known cybersecurity technician usually answers me like this: “You can only choose who is spying on you.”

Senior EU advisor for telecom, Internet and IT